Questions of Consent and Identity Preclude Summary Judgement

TCPA Connect

Finding questions on the issue of consent and the identity of the caller remained, U.S. District Court Judge Robert L. Miller Jr. from the Southern District of Indiana denied a Telephone Consumer Protection Act (TCPA) defendant’s bid for summary judgment in mid-June 2018. That case is Benedetti v. Charter Communications, Inc.

Shannon Benedetti worked as a live-in nanny for a Mr. Craig, who bought cable and internet service from Charter Communications. The service was spotty, and Benedetti made frequent calls about outages, only to be told that since she was not listed on the account, she could not work with Charter to troubleshoot the problems.

Mr. Craig told Benedetti that he called Charter to authorize the help desk personnel to work with her in the event of problems and provided Charter with her cellphone number.

Thereafter, Benedetti began receiving calls from Charter when Mr. Craig either fell behind or stopped payments to Charter. Benedetti said the calls “seemed” to be in a prerecorded voice and were about Mr. Craig’s debt. Although she spoke with a customer service representative and explained the situation, the calls to Benedetti continued, up to one dozen on some days.

She filed suit against Charter, alleging violations of the TCPA. The defendant responded that Benedetti could not prove that Charter made the calls in question or that the calls were made using an automated telephone dialing system (ATDS); alternatively, Charter argued Benedetti consented to receive calls from Charter.

However, Judge Miller disagreed, denying Charter’s motion for summary judgment.

As to who made the calls: “A jury drawing all reasonable inferences in Ms. Benedetti’s favor could find that Charter was responsible for the calls,” the court wrote. “Charter is right that the caller’s statement that the call was being made on Charter’s behalf is, without more, hearsay when offered for the truth of the matter asserted. But authentication is a different matter. Ms. Benedetti can use distinctive characteristics to prove the calls were made on behalf of Charter … such as the self-identification, calls from a number associated with Charter, and the subject matter of the calls. Evidence presented at trial is likely to differ in some respects, but on this record, the authentication evidence is sufficient to allow the jury to find that these calls were placed by or on behalf of Charter.”

The court also rejected Charter’s argument that Benedetti consented to receive calls because she agreed to have her number on the account.

“Ms. Benedetti testified as to what she asked Mr. Craig to do and what Mr. Craig told her he had done, but the summary judgment record contains nothing regarding what Mr. Craig actually said to Charter about the use to which Ms. Benedetti’s name and cellphone number might be put,” the court said. “This is an affirmative defense on which Charter bears the burden of proof at trial, so Charter must point to evidence that would allow the jury to find, by a preponderance of the evidence, that Ms. Benedetti authorized the use of her number for calls relating to late or missing payments, as well as for ‘troubleshooting,’ which is the extent of Ms. Benedetti’s testimony. Charter isn’t entitled to judgment as a matter of law on its consent defense.”

To read the opinion and order in Benedetti v. Charter Communications, Inc., click here.

Why it matters: The court was not persuaded at the summary judgment stage that by merely providing her number for help with troubleshooting, the plaintiff also consented to receive other calls from the defendant related to the account. The court was also not impressed with Charter’s attempts to shirk responsibility for having made the calls to the extent plaintiff did not conclusively prove they originated from Charter, even though plaintiff apparently did not provide any (or at least very little) document evidence to support her claim.



pursuant to New York DR 2-101(f)

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